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Today the Supreme Court of Canada released its long-awaited decision in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61, which upheld Sanofi's "selection patent" over the anti-coagulant marketed as Plavix. A selection patent is basically a patent for a particular part of an already-patented invention. They're widely used in the chemical and pharmaceutical industries, and have huge importance in ongoing battles between generic and research-based pharmaceutical companies.
The objection put forward to this kind of patent is the putative
inventor hasn't actually done anything new or inventive. In patent
lingo, that would mean that the claimed invention has already been
anticipated by an earlier invention, or that the earlier invention
renders the latter one obvious. Either finding would make the selection
patent invalid.
More
fundamentally, because the specific selected invention (usually a
chemical compound) was already a claimed generally as part of a broader
genus of compounds, opponents of selection patents would argue that the
patentee is double-dipping into the patent system. In effect, the
selected compounded is protected both by the first (originating) patent
and the second (selection) patent. A patentee can use the strategy of
selection patents to "evergreen" their protection; that is, extend the
duration of their effective monopoly over the invention and all of its
components.
The Supreme
Court rejected those objections in principle, saying there's nothing
per
se problematic about selection patents. Technically, the selection
patent claims something different (presumably better) than the
originating patent. And on the facts of this particular case,
originating patent did not disclose or enable the selection patent, nor
did it make the selection patent obvious. So even though Sanofi's
originating patent expired in 2002, the drug maker is protected until
its selection patent expires in 2012.
The
broader, practical implication of this decision is that it will likely delay the
introduction of other generic drugs. That will probably make medicine more
expensive, because there's less competition for a longer period of
time. Of course, more expensive medicines mean more incentives for
pharma companies to invest in new research and drug development -- that's the
whole point of a patent system. The million dollar question is whether
the benefits outweigh the costs. I wish I knew the answer.
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